'1. Before the court is a notice of motion application dated 31st July 2025, vide which the applicant seeks to be added as an interested party in the instant appeal and to file a supplementary record of appeal. The application is grounded on an averment that the applicant is a lawful beneficiary of the estate, the subject of the proceedings in the court below. She has a direct and substantial interest in the outcome of the appeal. It was further averred that the interested party was added in the said capacity in the court below, but was unable to participate due to existing stay orders.
2. In the affidavit in support of the application, the intended interested party averred that she was the daughter of Abdalla Maisha Isabelle (deceased), who was the daughter of Zong’ollo Zolleyn alias Ali Said Ahmed Abdalla. The latter left behind a written will dated 18th February 2008, in which the intended interested party was a beneficiary; notwithstanding this, it is urged that in the proceedings before the Kadhi, the interests of the intended interested party''s mother were not noted.
3. The appellant opposed the application vide a replying affidavit sworn on 7th October 2025 on the grounds that the supporting affidavit of the intended interested party had annexures that were in French but whose translation had not been provided for.
4. The application was canvassed by way of written submissions. The submissions of the intended interested party are dated 17th October 2025, and those of the appellant/respondents are dated 27th October 2025. I shall briefly refer to the said submissions below.
5. The applicant identified issues coming up for determination as whether the intended interested party should be added as a party and if the documents attached to the application should be expunged. In response to the first question, it was submitted that the applicant had an identifiable interest in the estate.
6. On the second question, reliance was placed on Article 159(2) of the Constitution of Kenya; further reliance was placed on Order 51 Rule 10 (2) of the Civil Procedure Rules. It was urged that failure to provide a certificate of translation was a procedural issue that should be excused. Counsel urged that not all documents were in French, as evidenced by annexures “AM-7” to “AM-15”.
7. Counsel therefore prayed that the application be allowed as prayed.
8. In her submissions, counsel for the appellant urged that the application ought to be dismissed as the annexures thereto were in the French language and no certificate of transaction was provided. She submitted that the lapse was not merely a technicality, but a substantive defect that renders the entire application totally defective and untenable in law.
9. Ms Mwangi, learned counsel for the appellant/applicant, submitted that the lapse could not be cured by Article 154 (2) of the Constitution, as the said provision does not circumvent substantive legal requirements or allow parties to present inadmissible documents before the court.
10. I have perused the application. I note that the applicant is said to be a grandchild of one Zong’ollo Zolleyn alias Ali Said Ahmed Abdalla, who is said to have owned properties forming part of the estate under contestation.
11. I have perused the said application. I note that not all the documents attached to the application were in French. The contention to the contrary is therefore false.
12. The decision whether to add a party is a discretionary one. Discretion must be exercised judiciously and not whimsically. On the material before me, it appears that the interested party fits the description of an interested party as set out in Magiri Rinkanya v Mariam Nuru & another [2020] KEHC 66 (KLR).
13. Although there is a requirement that certified translation of foreign documents be provided, the decision on joinder does not turn on the said documents. To do otherwise would turn the said legal requirements into a fetish, and procedure as a mistress of substance and not its handmaiden.
14. The upshot of the foregoing is that the application dated 31st July 2025 is allowed. This being a family appeal, each party will bear her/his own costs.
15. It is so ordered.
Dated and signed this 25th day of November 2025. Delivered virtually through Microsoft TEAMS.
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2. In the affidavit in support of the application, the intended interested party averred that she was the daughter of Abdalla Maisha Isabelle (deceased), who was the daughter of Zong’ollo Zolleyn alias Ali Said Ahmed Abdalla. The latter left behind a written will dated 18th February 2008, in which the intended interested party was a beneficiary; notwithstanding this, it is urged that in the proceedings before the Kadhi, the interests of the intended interested party''s mother were not noted.
3. The appellant opposed the application vide a replying affidavit sworn on 7th October 2025 on the grounds that the supporting affidavit of the intended interested party had annexures that were in French but whose translation had not been provided for.
4. The application was canvassed by way of written submissions. The submissions of the intended interested party are dated 17th October 2025, and those of the appellant/respondents are dated 27th October 2025. I shall briefly refer to the said submissions below.
5. The applicant identified issues coming up for determination as whether the intended interested party should be added as a party and if the documents attached to the application should be expunged. In response to the first question, it was submitted that the applicant had an identifiable interest in the estate.
6. On the second question, reliance was placed on Article 159(2) of the Constitution of Kenya; further reliance was placed on Order 51 Rule 10 (2) of the Civil Procedure Rules. It was urged that failure to provide a certificate of translation was a procedural issue that should be excused. Counsel urged that not all documents were in French, as evidenced by annexures “AM-7” to “AM-15”.
7. Counsel therefore prayed that the application be allowed as prayed.
8. In her submissions, counsel for the appellant urged that the application ought to be dismissed as the annexures thereto were in the French language and no certificate of transaction was provided. She submitted that the lapse was not merely a technicality, but a substantive defect that renders the entire application totally defective and untenable in law.
9. Ms Mwangi, learned counsel for the appellant/applicant, submitted that the lapse could not be cured by Article 154 (2) of the Constitution, as the said provision does not circumvent substantive legal requirements or allow parties to present inadmissible documents before the court.
10. I have perused the application. I note that the applicant is said to be a grandchild of one Zong’ollo Zolleyn alias Ali Said Ahmed Abdalla, who is said to have owned properties forming part of the estate under contestation.
11. I have perused the said application. I note that not all the documents attached to the application were in French. The contention to the contrary is therefore false.
12. The decision whether to add a party is a discretionary one. Discretion must be exercised judiciously and not whimsically. On the material before me, it appears that the interested party fits the description of an interested party as set out in Magiri Rinkanya v Mariam Nuru & another [2020] KEHC 66 (KLR).
13. Although there is a requirement that certified translation of foreign documents be provided, the decision on joinder does not turn on the said documents. To do otherwise would turn the said legal requirements into a fetish, and procedure as a mistress of substance and not its handmaiden.
14. The upshot of the foregoing is that the application dated 31st July 2025 is allowed. This being a family appeal, each party will bear her/his own costs.
15. It is so ordered.
Dated and signed this 25th day of November 2025. Delivered virtually through Microsoft TEAMS.
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